Judicial Spectacle Events as Reality and as Fiction - Taylor & Francis ...

(2011) 5(1) Law and Humanities 259–270

Judicial Spectacle Events as Reality and as Fiction Guy Spielmann*

While reading a French newspaper in 2009, I came across a story about a trial that a television channel wished to film; when asked for his permission the presiding judge replied indignantly: ‘La justice n’est pas un spectacle!’ (‘Justice is no spectacle!’) As I researched the incident further, I discovered that this retort had become something of a catchphrase in France, uttered as the definitive affirmation of an axiomatic truth, both by law professionals and by members of the general public. Scholars, however, are supposed to exercise great caution towards such doxastic pronouncements, no matter how universally accepted they appear. Given that for centuries the practice of law has been de facto the stuff of spectacle, providing source material for countless works of fiction in literature, drama and film, a radical rejection of spectacle makes us wonder why the relationship should be so lopsided. In fact, it even makes sense—and it certainly is more provocative—to reverse the dictum: what if justice may only be served through a judicial process that, fundamentally, possesses all the features of spectacle? In studying the relationship between law and fiction, it is useful to chart the differences between American and European attitudes. In 2002, a court in Porrentruy, Switzerland took a most unusual step in allowing the main French-language national television channel to film its proceedings, attracting mixed reviews: In their vast majority, local and state magistrates are openly hostile to the presence of photographers or camera operators inside a courthouse. The example of American channels like Court TV, that broadcast trials live serves as a dissuasion. As Jean-Marc Schwenter, the attorney general for the canton of Vaud, put it: ‘In matters of justice, the American example is definitely one that we should not follow. Justice is no spectacle. Daniel Zappelli, the attorney general for the state of Geneva, holds a slightly different view: ‘There may be a middle ground to be found between spectacular justice and lack of visibility.’1

Looking for a reasonable middle ground, however, is only warranted if ‘spectacular justice’ is understood as an inherently negative proposition, which is obviously the case in Europe, * 1

Georgetown University, Washington, DC, USA. ‘Des caméras au tribunal’ 24 Heures Lausanne, 25 September 2002, http://archives.24heures.ch/VQ/ LAUSANNE/-/article-2002-09-2093/des-cameras-au-tribunalporrentruy-ce-soir-la-television-suisseromande-devoile-dans-le-cadre-de (accessed 30 November 2010). Translation is mine.

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but not always in the rest of the world, as evidenced in an editorial written in the wake of the OJ Simpson trial by N Lee Cooper, American Bar Association President. Cooper noted: ‘We must not mistake media excess … for the mechanics of an ordinary trial’2— a deceptively simple pronouncement that encapsulates the real parameters of the problem: we need to carefully distinguish between a trial proper and the reporting of it, without conflating ‘spectacular’ features that both may possess. More basic still, ‘Justice is not a spectacle’ is pleonastic since ‘justice’ is an abstract notion; in concrete terms, there are only situations and actions that we may qualify as ‘just’ or ‘unjust’. Laws, of course, take on the concrete form of texts; but even laws remain abstract until they are enforced through a specific process that ultimately determines whether a certain situation or action is lawful. The trial, a key component in this process, is a type of event that brings together the accused, a defender, a judge, an accuser (such as a district attorney), and an audience—in fact, a double audience: the jury, and the public at large. In most cases, the proceedings take place in a specific building (a courthouse or tribunal), and always in a specific time frame (when the court is ‘in session’). All these elements are crucial to the validity of the trial, and the established procedure must be followed scrupulously, failing which a mistrial may be called, or there may be a suspicion that justice has not been served. All that is done by the concerned parties (police officers, the judge, lawyers and even the accused) must be accomplished publicly and according to a prescribed format—which is to say that they are all performances. The performative nature of a trial is manifested in a number of aspects: the assembly is divided between those who act and those who mostly watch; the relationship between them is asymmetrical, yet those who watch need to be present for the event to take place and be valid, though they are not expected (or, in fact, allowed) to become actively involved.3 All this gives the audience a function very similar to the role it plays in a stage show—Christian Biet has pioneered the use of comparution (literally ‘to appear together’) in reference to both.4 In the courtroom as in the playhouse, each participant occupies a stable, specific and separate space according to function. The judge wears a special costume (in some traditions, lawyers also wear distinctive clothes). Whereas judges and lawyers need proper credentials, accreditation is not a sufficient condition for the proceedings to have judicial value: this occurs only at a certain time (when the court is in session) and when precise procedures are observed, including the proffering of ritual formulas.5 2 3 4 5

N Lee Cooper, ‘Don’t get Trampled by Media Circus’ (1997) 83(2) American Bar Association Journal 8. In a contemporary playhouse, self-directed intervention by audience members, although theoretically possible, is all but prohibited. Christian Biet, ‘Towards a Dramaturgy of Appearance: An Aesthetic and Political Understanding of the Theatrical Event as Session’ (2009) 14(3) Performance Research 102–9. To be distinguished from the use of legalese, or jargon, which is largely a matter of habit and expediency rather than legal constraint. However, archaic turns of phrase (often in Latin) contribute to the spectacular nature of the trial by emphasising the distance between legal proceedings and ordinary life.

Judicial Spectacle Events as Reality and as Fiction

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Yet few people hold the view that a trial is, by nature, a spectacle; probably because, in the most usual understanding, a trial is an official, solemn event, with serious implications for society and for the life of individual. It firmly belongs to ‘real life.’ A spectacle, on the other hand, is viewed as unofficial and mostly gratuitous, with no significant impact on real life; it belongs to the realm of the imagination, of entertainment, of fiction. Thus, by turning a trial into a spectacle, one would almost certainly compromise its solemnity, and possibly its validity. This common notion, however, is merely based on the misguided belief that a spectacle is always to some extent fictional, even though, undeniably, some events that have spectacular aspects also belong to ‘real life’, such as military parades, political rallies and ceremonies, lectures, weddings, religious celebrations, etc. Unfortunately, performance theory has encouraged this belief by endorsing a binary sliding scale with ‘efficacious’ rituals at one end (such as a court trial, wherein something real gets accomplished), and ‘entertainment’ (or ‘theatre’) at the other.6 The issue is further muddied by the fact that, even in a trial not sullied by an excess of spectacle, one may find elements of suspense usually associated with the unfolding of a theatrical play, often called ‘drama of the courtroom’. But such an observation is hardly limited to the judicial process, and an entire branch of sociology has evolved from Erving Goffman’s principle that all of human social life could be understood as a form of theatre.7 I propose instead to envision spectacle as a type of communicative event in which both performance and spectation occur at a given time and place, regardless of what gets accomplished, and of the fictional (ie non-efficacious) nature of some of its components.8 Since trials definitely fall into this category, the question is not whether they are spectacles, but whether their spectacular aspects are impediments to justice. In order to answer this question, I would like to consider some of the most prominent trials of the last century, which all generated considerable controversy because of allegedly excessive ‘spectaclisation’.9 When in February 1999 NBC’s Today show ran a survey to determine what its viewers (3,857 responded) considered to be the ‘trial of the century’, four clearly stood out: the 1995 trial of OJ Simpson (24%); the 1946 Nazi war crimes trial (21%); the 1999 Clinton 6 7

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9

See Richard Schechner, ‘From Ritual to Theater and Back: The Ritual-Entertainment Braid’ in Performance Theory (Routledge, 1977, rev edn 1988) 106–52. ‘Scripts even in the hands of unpracticed players can come to life because life itself is a dramatically enacted thing. All the world is not, of course, a stage, but the crucial ways in which it isn’t are not easy to specify.’ Erving Goffman, The Presentation of Self in Everyday Life (Doubleday, 1959, rev edn 1990) 72. See also A Paul Hare and Herbert H Blumberg (eds), Dramaturgical Analysis of Social Interaction (Praeger, 1988). In my book Spectacle Events (forthcoming), I define spectation as the action of attending an event involving ostension or performance, and performance as the self-conscious accomplishment of an action, according to a predetermined pattern or script. The term ‘spectacliser’ was coined by Daniel Raichvarg in Science et spectacle: figures d’une rencontre (Z’Editions, 1993) to describe the transformation of scientific experiments into spectacles for a general audience in the late 19th century.

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impeachment trial (20%); and the 1925 Scopes (aka ‘Monkey’) Trial (14%). Not only do they have little in common from a legal perspective, they represent a wide variety of case scenarios; but such diversity may help us better understand how spectaclisation operates.

1925: STATE OF TENNESSEE v JOHN SCOPES Doug Linder, a Professor at University of Missouri-Kansas City School of Law, who was contacted by NBC and other media outlets to give an expert opinion, strenuously disagreed with the popular vote and offered five reasons to regard the Scopes trial as the most important. While most of his arguments pertain to socio-political significance, he also noted that ‘The Scopes Trial inspired Inherit the Wind, one of the greatest courtroom dramas ever … And the Simpson Trial inspired what?’10 This is more than a mere rhetorical question, because, although Tennessee v John Scopes ended up not being much of a legal case, Inherit the Wind made it look like a momentous event in contemporary American history.11 However, there is more at hand than the expected amplification that a fictional treatment brings. The celebrated columnist and curmudgeon HL Mencken, who covered the Scopes Trial (initially for the Baltimore Evening Sun, but his essays were reprinted in several other newspapers nationwide), remarked that, even before the proceedings had begun, those who had been frantically drumming up publicity for the event might soon come to regret it: Today, with the curtain barely rung up and the worst buffooneries to come, it is obvious to even town boomers that getting upon the map, like patriotism, is not enough. The getting there must be managed discreetly, adroitly, with careful regard to psychological niceties. The boomers of Dayton, alas, had no skill at such things, and the experts they called in were all quacks. The result now turns the communal liver to water. Two months ago the town was obscure and happy. Today it is a universal joke.12

Even though Scopes’ indictment did have the potential to generate a truly significant legal case and philosophical debate, Mencken thoroughly derided it as extravagantly frivolous and characterised by instances of showmanship by a variety of religious extremists: The trial, indeed, takes on, for all its legal forms, something of the air of a religious orgy. The applause of the crowd I have already mentioned. Judge Raulston rapped it down and threatened Douglas O Linder, ‘What is THE Trial of the Century?’, www.law.umkc.edu/faculty/projects/ftrials/scopes/ century.html (accessed 30 November 2010). 11 Inherit the Wind, directed by Stanley Kramer (USA, United Artists, 1960). 12 Henry Louis Mencken, ‘Mencken Finds Daytonians Full of Sickening Doubts about Value of Publicity’ Baltimore Evening Sun, 9 July 1925, reprinted in Positive Atheism Magazine, www.positiveatheism.org/hist/ menck01.htm#SCOPES1 (accessed 30 November 2010). 10


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to clear the room if it was repeated, but he was quite unable to still its echoes under his very windows. The courthouse is surrounded by a large lawn, and it is peppered day and night with evangelists. One and all they are fundamentalists and their yells and bawlings fill the air with orthodoxy … One of these holy men wears a sign on his back announcing that he is the Bible champion of the world … Most of the participants in such recondite combats, of course, are yokels from the hills, where no sound is heard after sundown save the roar of the catamount and the wailing of departed spirits, and a man thus has time to ponder the divine mysteries. But it is an amazing thing that the more polished classes also participate actively. The professor who challenged the Bible champion was indistinguishable, to the eye, from a bond salesman or city bootlegger. He had on a natty palm beach suit and a fashionable soft collar and he used excellent English. Obviously, he was one who had been through the local high school and perhaps a country college. Yet he was so far uncontaminated by infidelity that he stood in the hot sun for a whole hour debating a point that even bishops might be excused for dodging, winter as well as summer.13

As a matter of fact, the whole affair was something of a scam, since John Scopes had been persuaded to let himself be indicted by community leaders who wanted to take advantage of an offer by the ACLU to throw its weight behind a challenge to a new Tennessee law against teaching evolution. The trial promptly turned into a public debate between two high-profile champions: William Jennings Bryan, three-time Democratic candidate for President, had been on a campaign to ban Darwin’s theory of evolution from being taught in schools; Clarence Darrow was a celebrity lawyer and militant atheist who also had political ambitions, and saw the trial as a the perfect venue to settle old scores with Bryan. Soon, the defendant’s fate as an individual no longer seemed to matter, and Darrow went as far as to request from the jury a guilty verdict, so that the case might proceed to the state Supreme Court on appeal. This unconventional move also deprived Bryan of delivering his closing argument, and Darrow was thus widely regarded as having ‘won’ the argument against religious fundamentalism against Bryan. Scopes was found guilty and fined $100, but the Tennessee Supreme Court reversed the decision on a point of procedure, and eventually dismissed the case altogether. This lacklustre outcome stands in sharp contrast to the impact that the fictional versions enjoyed. Initially a stage play written by Jerome Lawrence and Robert E Lee in 1950, Inherit the Wind opened on Broadway in 1955 with a stellar cast that included Paul Muni as Henry Drummond (a character modelled on Darrow), Ed Begley as Matthew Harrison Brady (modelled on Bryan), and Tony Randall as EK Hornbeck (modelled on Mencken). A box-office success, the play was then reworked into a film script by Nathan Douglas and Harold Smith, and the cinematic version, released in 1960 (it garnered four

13

HL Mencken, ‘Mencken Likens Trial to a Religious Orgy, with Defendant a Beelzebub’ Baltimore Evening Sun, 11 July 1925, reprinted in Positive Atheism Magazine, www.positiveatheism.org/hist/menck02.htm# SCOPES4 (accessed 30 November 2010).

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Academy Award nominations), had an added dimension: it offered an obvious commentary—not on the controversy over religious fundamentalism and evolution in the 1920s, but rather on censorship and McCarthyism in the 1950s (much as Miller’s The Crucible did with the 1692 Salem witch trials). It also glossed over the minute aspects of the philosophical and theological disputes between Darrow and Bryan, while dwelling on the ambiance in the courtroom and in the whole city of Dayton. Such a focus was not entirely illegitimate. As an observer had noted: ‘One was hard put to it on the tenth of July … to know whether Dayton was holding a camp meeting, a Chautauqua, a street fair, a carnival, or a belated Fourth of July celebration.’14 Though the film made it clear that the actual trial had been, in many ways, a show played to an exuberant and unruly crowd, this did not affect its reputation as a landmark case, which it definitely was not: regardless of the fact that Darrow had outperformed Bryan as an orator and debater, it would take several decades before antievolution laws were repealed in bible-belt states. In other words, whereas the judicial process itself had been turned into a ‘media spectacle’ of a dubious sort (it was also the occasion of the very first live radio broadcast from a courtroom), it was somewhat rehabilitated by being turned into a work of fiction that portrayed the case less as the trial of John Scopes than as a socio-political debate between two larger-than-life orators. Be that as it may, one cannot simply argue that the trial was skewed by excessive media coverage: as a judicial event, it was flawed from its inception, since its instigators wanted to make a political statement, rather than ensure that justice was being served.

1945: WAR CRIMES TRIALS AT NUREMBERG Although the stakes were clearly different, the Nuremberg trials were also unusual in that the verdict was a foregone conclusion. As soon as the principal defendants were named, and therefore identified as ranking members of the Nazi state apparatus, their guilt was established ipso facto: that Nazi Germany had laid waste to most of Europe, in addition to planning and carrying out the ‘final solution’ that caused millions of civilian casualties, was a given. And, regardless of the actual punishment meted out to defendants (a death sentence or a prison term), the crimes were so egregious that there could be no adequate retribution, especially since, as Foucault noted in Discipline and Punish, Western societies since the Enlightenment have been turning away from the notion of capital punishment as a retributive measure, whose enforcement could lead to shockingly bloody public

14

Marcet Haldeman-Julius, Clarence Darrow’s Two Great Trials: Reports of the Scopes Anti-Evolution Case and the Dr Sweet Negro Trial (Haldeman-Julius Co, 1927).


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carnage in extreme cases.15 In 1945, no government would have publicly condoned punishing Nazi dignitaries in a manner equal in ghastliness to the Holocaust.16 In this particular case, spectacle, as I have defined it above, was therefore the only point of the trial: since guilt was a given, and the nature of sentences irrelevant, considering the enormity of the crimes, all that remained was the performance of justice in the most public, most scrupulously documented way possible: what Habermas calls the necessary Publizität of judicial debate.17 However, it was equally important that the proceedings remain as soberly objective as could be, lest the accusers be charged of taking advantage of their superior position as winners of the war in order to distort the facts. This left no space for fiction: a Soviet film released in 1947 used archival footage, merely adding a narration that emphasised the role of the USSR in defeating the Nazis,18 and when Hollywood finally treated the subject in 1961 (in a film starring—again—Spencer Tracy19), the focus shifted to a later phase of the trials, with defendants who were not so obviously guilty.

1995: THE PEOPLE v ORENTHAL JAMES SIMPSON That the criminal trial of OJ Simpson would come in first in the NBC poll cannot initially be explained by its socio-political dimension: it was a relatively simple homicide case, except that the suspect was a media celebrity. However, it was consistently described as the ‘trial of the century’ even as it was happening, and it garnered an unprecedented amount of attention through continual, intense media coverage—133 days of televised courtroom testimony,20 and countless hours and pages of commentary and related features—that created a national and international obsession.21 That it has not generated a fictionalised 15

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18 19 20 21

Michel Foucault, Discipline and Punish [Surveiller et punir: naissance de la prison, 1975], Alan Sheridan (trans) (Vintage, 1977). The book opens with a detailed account of the grisly execution of Robert François Damiens, who was drawn and quartered on 28 March 1757 for the attempted murder of Louis XV (he actually wounded him slightly with a pen knife). Hence the fantasy of unofficial, eye-for-an-eye punishment carried out in the realm of fiction, most recently in Quentin Tarantino’s film Inglourious Basterds (USA/Germany, Universal Pictures/The Weinstein Company/A Band Apart/Zehnte Babelsberg/Visiona Romantica, 2009). Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society [Strukturwandel der öffentlichkeit: Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft, 1962] (MIT Press, 1991), Introduction. Specifically, Die Publizität refers to a critical examination in the public sphere that Habermas sees as the fundamental purpose of the judicial process. Sud narodov (aka Nuremberg Trials), directed by Roman Karmen and Yelizaveta Svilova, script by Boris Gorbatov (USSR, Central Documentary Film Studio, 1947). Judgment at Nuremberg, directed by Stanley Kramer from a script by Abby Mann (USA, Universal, 1961). OJ Simpson: The Trial, a series featuring analysis by attorneys and legal scholars, began as a local programme on NBC affiliate KNBC-TV/Los Angeles, and was aired nationwide on NBC’s cable network, CNBC. See Paul Thaler, The Spectacle: Media and the Making of the OJ Simpson Story (Praeger, 1997).

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account can be explained by its inherently dramatic nature, which made it a more compelling image of the judicial process model than fictional courtroom dramas: For years, lawyers say, they used television programs like ‘Perry Mason’, ‘L.A. Law’ and ‘Matlock’ to point out and then dispel myths about trials, like the misconceptions that a defendant must prove his innocence or take the witness stand. Now they use the Simpson case.22

There were multiple causes of this phenomenon. Not only was the defendant famous (as a pro football player, television commentator and movie actor), but many of those involved ended up playing to the ever-present cameras, becoming characters in a kind of morality play, while the murder of Nicole Simpson and Ronald Goldman ended up being a mere backdrop. A judge (Lance Ito) eagerly seeking media attention and allowing the trial to be filmed and to drag on excessively; a brash state prosecutor who viewed the case as a struggle between good and evil—and who noticeably altered her wardrobe and hairstyle as the trial progressed (Marcia Clark); a corrupt and racist LAPD detective straight out of a television cop show (Mark Fuhrman); a zany aspiring actor (Brian ‘Kato’ Kaelin) cutting up on the witness stand; and a ‘dream team’ of crack defence lawyers including F Lee Bailey, Alan M Dershowitz, Robert Kardashian, Barry Scheck, Robert Shapiro and Johnnie L Cochran Jr, the last of whom made himself famous with impassioned speeches delivered in a preacher’s tone, including quotable one-liners (‘If the gloves don’t fit, you must acquit!’). Thus the Simpson trial has been described as ‘the most mesmerizing, polarizing, and precedent-shattering television show in history’,23 which kept a sizeable proportion of the American public in thrall for months. On the morning of 3 October 1995, when the verdict was announced live on television, nine out of ten viewers (about 150 million) tuned in to watch. But even before it concluded, its mass appeal was widely perceived as harmful by law professionals: The fallout of the Simpson case will not be completely known until after a verdict. But using terms like ‘a caricature’, ‘a Tinseltown docudrama’ and ‘an embarrassment’, many defense lawyers and prosecutors agree that the trial has served up a distorted view of American justice that has done little to enhance the public’s faith in the legal system or profession. They decry the spectacle of witnesses seeming to say one thing under oath and another outside the courtroom; of jurors accusing other jurors of violating the judge’s orders; of lawyers attacking witnesses’ credibility in press interviews, and of the play-by-play analysis supplied by legal scholars and practitioners.24

Mireya Navarro, ‘Spectacle of Simpson Trial Makes Justice System Wince’ New York Times, 29 May 1995, 1. George Gerbner, ‘Cameras on Trial: The “OJ Show” Turns the Tide’ (1995) 39 Journal of Broadcasting & Electronic Media 562. 24 Navarro (n 22). 22 23


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Eventually, Simpson’s acquittal, in light of his subsequent condemnation in a civil court (which made him pay financial compensation to the victims’ families), seemed to confirm that justice had not been served the first time around; and, predictably, the argument was made that disproportionate media coverage had corrupted the judicial process. The unsavoury aspects decried by critics, however, did not actually compromise the integrity of the criminal trial; this was hardly the first celebrity trial in the US, and certainly Cochran’s histrionics fit squarely in a tradition of grandstanding by lawyers well documented since Ancient Greece.25 The most serious problem was that the LAPD mishandled the inquiry, which was unrelated to the spectacle of court proceedings. Another, broader issue was the shift in how the case was perceived by the public at large: ‘Although racial divisions on this matter existed from the outset, they became more pronounced over the criminal trial period’, which raises the question of ‘the role of the mass media in strengthening racial divisions’.26 Indeed, content analysis of major mainstream TV news shows reveals that ‘OJ Simpson’s guilt was clearly communicated through news magazine program content. A very high percentage of stories that featured the murders, 98.7%, implied Simpson’s guilt.’27 But again, the issue lay not with the trial being a spectacle, but with the ‘crime narrative’ spun by the media: The narrative elements of the Simpson case cut deep into America’s painful history. After all, it is a story about a Black man who married a White woman and became the prime suspect in her (and a White male friend’s) brutal murder.28

Clearly, this archetypal plot influenced the public’s perception of Simpson’s guilt, regardless of the amount and quality of evidence produced at the trial. Courtroom spectacle, though, was merely an accessory to the problem.

1999: IMPEACHMENT TRIAL OF PRESIDENT WILLIAM J CLINTON While Clinton’s impeachment trial generated a considerable amount of press coverage, some of it particularly tawdry, it could not be turned into a ‘media circus’ simply because most of the proceedings took place within the hallowed walls of the US Capitol. One very small detail, however, illustrates how fiction—in other words, non-efficacious elements— can be found in the most solemn judicial settings. After four articles of impeachment were held against Clinton by the House of Representatives, the actual trial took place in See Sadakat Kadri, The Trial: A History, from Socrates to OJ Simpson (Random House, 2005). [Originally released as Four Thousand Years of Courtroom Drama.] 26 Maria Elizabeth Grabe, ‘Narratives of Guilt: Television News Magazine Coverage of the OJ Simpson Criminal Trial’ (2000) 11(1) Howard Journal of Communications 36. 27 Ibid, 43. 28 Ibid, 37–38. 25

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the Senate in January 1999, Chief Justice William Rehnquist presiding. Four years earlier, Rehnquist had started wearing a robe that, in the words of one critic, ‘had been enlivened with sassy gold racing stripes’29—a most unusual display on the part of a Supreme Court Justice. Rehnquist explained that he had modelled his new garb, which he conspicuously wore at the impeachment proceedings, on the Lord Chancellor’s costume in a local production of Gilbert and Sullivan’s comic opera Iolanthe. In spite of the mockery it drew, Rehnquist’s attire was certainly not deemed to have spectaclised the trial to any great extent—the partisan political motivations for impeaching Clinton seemed far more worrisome (it still made one wonder why a man who already held the highest judicial office in the country would want to wear an extra symbol—of power? of distinction?). Moreover, Rehnquist’s outfit, from an American perspective, looked much less like a stage costume than the robes, wigs and wing-collars that British lawyers routinely wear in court. Such an apparently negligible sartorial matter does raise the question of precisely delineating fiction and reality. Vatican Swiss guards are real security personnel, although what they wear is definitely a costume in the sense that it is not at all efficacious as military apparel by twenty-first century standards; and in his courtroom, a judge dressed in a manner reminiscent of a theatrical character remains, functionally, a judge. In sum, three fundamental principles obtain: 1.

2.

3.

A court trial, whether or not it is highly publicized, belongs to the category of spectacle events (spectacle being a peculiar type of communicative activity that does not necessarily involve fiction); The presence of certain fictional (non-efficacious) elements in a trial, such as costumes and ‘theatrical’ behaviour by some of the participants, does not necessarily compromise the integrity of the proceedings from a legal perspective; In and of itself, media coverage of a trial—no matter how excessive, misguided and sensationalistic—does not necessarily constitute a spectacle event and, even if it does, that spectacle remains distinct from the spectacle of the judicial process per se.

In terms of propositional (formal) logic, ‘Justice is no spectacle’ expresses a contradiction—that is, a relation of mutual negative presupposition between two terms (‘the presence of one term presupposes the absence of the other and vice versa’30). Such a proposition is patently false since, as we have seen here, the rendering of justice (at least in Western democratic states) occurs through a public process that meets all the criteria of spectacle.

29 30

Kathleen Adams and Christine Gorman, ‘Dickey Envy’ (1995) 145(5) Time Magazine 20. Algirdas J Greimas and Julien Courtès, ‘Contradiction’ in Semiotics and Language: An Analytical Dictionary, Daniel Patte, Larry Crist et al (trans) (Indiana University Press, 1982).


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All spectacle events can be characterised according to four basic parameters: how much actually gets accomplished; the relative status of participants; the influence that performers exert on spectators; and the level of entertainment that it generates.31 In a court trial, the ceremonial aspect dominates, but other aspects may be represented as well to some degree. In a 2009 news article covering preliminary hearings in a suit brought by the heiress to one of France’s greatest business empires (L’Oréal cosmetics) against an artist whom she claimed swindled her mother out of hundreds of millions of Euros, a journalist for Le Figaro commented that although this was a purely procedural session, the two lawyers debated for nearly one hour, exchanging pleasantries as well as barbs. When the court finally went into recess, the audience had not endured even the briefest moment of boredom.32

On the other hand, there exist numerous forms of spectacle in which entertainment is the main purpose, but which also incorporate judicial elements, such as ‘mock trials’: on 16 March 2010, the National Shakespeare Theatre in Washington, DC held a show entitled Judgment at Agincourt, to coincide with a production of Henry V. A panel of distinguished lawyers and two Supreme Court Justices (Ruth Bader Ginsburg and Samuel Alito) enacted court proceedings to decide whether King Henry V was justified in his slaughter of French POWs after the battle at Agincourt. In Paris, director Robert Hossein has made a speciality of staging revisionist productions that re-enact actual trials whose outcomes were particularly contested, from the notorious 1924 murder case of Guillaume Seznec (L’Affaire Seznec, un procès impitoyable, 2010) to causes célèbres like the fateful trial of Queen Marie Antoinette (Je m’appelais Marie Antoinette, 1993). Rather than involving legal celebrities, Hossein uses actors and ‘interactive’ gimmicks that have proven hugely popular: the jury is sometimes composed of randomly chosen spectators, and the whole audience usually gets to vote. While these projects are purportedly motivated by the desire to revisit cases where a miscarriage of justice is widely suspected, they mostly work as drama for audiences that do not normally attend standard theatre. Mock trials can also be spectacle events in which the instructional aspect takes precedence, as when students perform the re-enactment themselves, rather than just watch it.33 At the other end of the spectrum, we find the ‘show trials’ of alleged dissenters

I have sketched out a scheme where spectacle events are categorised according to their degree of conformity to four types: Ceremony, Festival, Instruction and Entertainment. ‘Pour une théorie d’ensemble des spectacles de l’Age Classique’ in Rainer Zaiser (ed), L’Age de la représentation: L’art du spectacle au XVIIe siècle (Biblio 17, 2007) 179–92. 32 Cyrille Louis, ‘Passe d’armes entre avocats au procès Bettencourt’ Le Figaro, 4 September 2009, 9: ‘Malgré le caractère purement formel de la première audience … les deux pénalistes ont débattu pendant près d’une heure, échangeant au passage amabilités et coups de griffes. Puis, sans que l’assistance ait un seul instant eu l’occasion de s’ennuyer, le tribunal a suspendu les débats.’ Translation is mine. 33 See the homepage of the American Mock Trial Association (AMTA) at www.collegemocktrial.org. 31

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and counter-revolutionaries in the early days of the USSR, which were at the same time efficacious in terms of the sentences issued and their consequences (deportations, jail terms, executions) and instructional for the general public (people were both persuaded of a threat against the revolution and dissuaded from dissenting), but wholly fictitious in terms of the judicial process, since the outcome was known from the start. Publicity, rather than ensuring fairness, served as a propaganda device. These examples show that, in a trial, the relationship between reality and fiction is neither simple nor unilateral. It seems relatively easy to place Reginald Rose’s teleplay Twelve Angry Men (1954) and Harper Lee’s novel To Kill a Mockingbird (1960) on the side of fiction, though both are inspired by actual events; but how should we categorise television shows such as The People’s Court and Judge Judy, whose main goal is to entertain viewers, and which are spectacles in the strictest sense—yet also function as bona fide judicial proceedings? Thus the meaning of and in ‘law and spectacle’ appears to be neither conjunctive (what may lie at the intersection of law and spectacle) nor additive (what results when both are combined), nor even disjunctive, that is, expressing contradiction:34 it refers to a variable nexus between two entities that, from a functional perspective, and contrary to commonly expressed views, may well just belong to the same paradigm.

34

The Oxford English Dictionary defines ‘and’ as ‘Expressing a difference of quality between things of the same name or class’ (¶7a), and even as ‘Opposed to’ (¶7b). One example given for 7a is: ‘All human conduct is determined or caused. But there are causes and causes’, Denise Meyerson, ‘Fundamental Contradictions in Critical Legal Studies’ (1991) 11 Oxford Journal of Legal Studies 439, 440. Examples for 7b might be the title of Tolstoy’s novel, War and Peace, or, better yet, the play by Francis Beaumont and John Fletcher, A King and No King (1619).